29 C.F.R. § 776.16 Employment in “producing, * * * or in any other manner working on” goods.
Title 29 - Labor
(a) Coverage in general. Employees employed in “producing, manufacturing, mining, handling, or in any other manner working on” goods (as defined in the Act, including parts or ingredients thereof) for interstate or foreign commerce are considered actually engaged in the “production” of such goods, within the meaning of the Act. Such employees have been within the general coverage of the wage and hours provisions since enactment of the Act in 1938, and remain so under the Fair Labor Standards Amendments of 1949.59 59 H. Mgrs. St., 1949, p. 14; Sen. St., 1949 Cong. Rec., p. 15372. (b) Activities constituting actual “production” under statutory definition. It will be noted that the actual productive work described in this portion of the definition of “produced” includes not only the work involved in making the products of mining, manufacturing, or processing operations, but also includes “handling, transporting, or in any other manner working on” goods. This is so, regardless of whether the goods are to be further processed or are so-called “finished goods.” The Supreme Court has stated that this language of the definition brings within the scope of the term “production,” as used in the Act, “every step in putting the subject to commerce in a state to enter commerce,” including “all steps, whether manufacture or not, which lead to readiness for putting goods into the stream of commerce,” and “every kind of incidental operation preparatory to putting goods into the stream of commerce.”60 60 Western Union Tel. Co. v. Lenroot, 323 U.S. 490. See, to the same effect, Walling v. Friend, 156 F. 2d 429 (C.A. 8); Walling v. Commet Carriers, 151 F. 2d 107 (C.A. 2); Phillips v. Star Overall Dry Cleaning Laundry Co., 149 F. 2d 416 (C.A. 2); certiorari denied 327 U.S. 780; Walling v. Griffin Cartage Co., 62 F. Supp. 396, affirmed in 153 F. 2d 587 (C.A. 6). For examples, see paragraphs (c) and (d) of this section. Employees who are not engaged in the actual production Activities described in section 3(j) of the Act are not engaged in “production” unless their work is “closely related” and “directly essential” to such production. See §§776.17–776.19. However, where employees of a common carrier, by handling or working on goods, accomplish the interstate transit or movement in commerce itself, such handling or working on the goods is not “production.” The employees in that event are covered only under the phrase “engaged in commerce.”61 61 Western Union Tel. Co. v. Lenroot, 323 U.S. 490. For examples, see paragraph (c) of this section. (c) Physical labor. It is clear from the principles stated in paragraphs (a) and (b) of this section, that employees in shipping rooms, warehouses, distribution yards, grain elevators, etc., who sort, screen, grade, store, pack, label, address or otherwise handle or work on goods in preparation for shipment of the goods out of the State are engaged in the production of goods for commerce within the meaning of the Act.62 62 McComb v. Wyandotte Furn. Co., 169 F. 2d 766 (C.A. 8); Walling v. Mutual Wholesale Food & Supply Co., 141 F. 2d 331 (C.A. 8); West Kentucky Coal Co. v. Walling, 153 F. 2d 582 (C.A. 6); Walling v. Home Loose Leaf Tobacco Warehouse Co., 51 F. Supp. 914 (E.D. Ky.); Walling v. Yeakley, 3 W.H. Cases 27, modified and affirmed in 140 F. 2d 830 (C.A. 10); Shain v. Armour & Co., 50 F. Supp. 907 (W.D. Ky.); Walling v. McCracken County Peach Growers Assn., 50 F. Supp. 900 (W.D. Ky). See also Clyde v. Broderick, 144 F. 2d 348 (C.A. 10). 63 Bracey v. Luray, 138 F. 2d 8 (C.A. 4). 64 Walling v. Friend, 156 F. 2d 429 (C.A. 8). 65 Fleming v. Swift & Co., 41 F. Supp. 825, affirmed in 131 F. 2d 249 (C.A. 7); McComb v. Benz Co., 9 W.H. Cases 277 (S.D. Ind.). 66 Walling v. Villaume Box & Lbr. Co., 58 F. Supp. 150 (D. Minn.). 67 Mid-Continent Pipe Line Co. v. Hargrave, 129 F. 2d 655 (C.A. 10); Boling v. R. J. Allison Co., Inc., 4 W.H. Cases 500 (N.D. Okla.). 68 Hanson v. Lagerstrom, 133 F. 2d 120 (C.A. 8). 69 Walling v. Griffin Cartage Co., 62 F. Supp. 696, affirmed in 153 F. 2d 587 (C.A. 6); Walling v. Comet Carriers, 151 F. 2d 107 (C.A. 2). 70 Slover v. Walthen, 140 F. 2d 258 (C.A. 4). 71 Hertz Drivurself Stations v. United States, 150 F. 2d 923 (C.A. 8); Walling v. Armbruster, 51 F. Supp. 166 (W.D. Ark.); McComb v. Weller, 9. W.H. Cases 53 (W.D. Tenn.), 17 Labor Cases (CCH) par. 65, 332; Walling v. Strum & Sons, 6 W.H. Cases 131 (D. N.J.), 11 Labor Cases (CCH) par. 63, 249. 72 Engebretson v. Albrecht, 150 F. 2d 602 (C.A. 7); Guess v. Montague, 140 F. 2d 500 (C.A. 4). 73 Walling v. Belikoff, 147 F. 2d 1008 (C.A. 2); Campbell v. Zavelo, 243 Ala. 361, 10 So. 2d 29; Phillips v. Star Overall Dry Cleaning Laundry Co., 149 F. 2d 416 (C.A. 2), certiorari denied 327 U.S. 780. These examples are, of course, illustrative rather than exhaustive. Some of them relate to situations in which the handling or working on goods for interstate or foreign commerce may constitute not only “production for commerce” but also engaging “in commerce” because the activities are so closely related to commerce as to be for all practical purposes a part of it.74 74 Slover v. Walthen, 140 F. 2d 258 (C.A. 4); Hertz Drivurself Stations v. United States, 150 F. 2d 923 (C.A. 8); Engebretson v. Albrecht, 150 F. 2d 602 (C.A. 7); Walling v. Strum & Sons, 6 W.H. Cases 131 (D. N.J.). (d) Nonmanual work. The “production” described by the phrase “producing * * * or in any other manner working on” goods includes not only the manual, physical labor involved in processing and working on the tangible products of a producing enterprise, but equally the administration, planning, management, and control of the various physical processes together with the accompanying accounting and clerical activities.75 75 Borden Co. v. Borella, 325 U.S. 679; Hertz Drivurself Stations. v. United States, 150 F. 2d 923 (C.A. 8); Callus v. 10 E. 40th St. Bldg., 146 F. 2d 438 (C.A. 2), reversed on other grounds in 325 U.S. 578. 76 Borden Co. v. Borella, 325 U.S. 679, 683.
Title 29: Labor
PART 776—INTERPRETATIVE BULLETIN ON THE GENERAL COVERAGE OF THE WAGE AND HOURS PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938
Subpart A—General
Engaging in “The Production of Goods for Commerce”
§ 776.16 Employment in “producing, * * * or in any other manner working on” goods.